Author: Daniel B. Tilley

Kyle Duncan, nominated by President Trump to the Fifth Circuit, is an experienced Supreme Court advocate who has built a reputation by promoting conservative religious causes through litigation and advancing prosecution-friendly positions in criminal cases. In particular, Duncan has spent much of his recent career fighting to narrow protections for reproductive freedom and LGBT rights. While the Fifth Circuit is already a conservative court, Duncan’s confirmation would add a uniquely conservative perspective.

Background

Stuart Kyle Duncan was born in 1972 in Baton Rouge, Louisiana.[1] He graduated summa cum laude from Louisiana State University in 1994 and received his law degree in 1997 from the same institution, where he served on the Louisiana Law Review and was inducted into the Order of the Coif.[2] After receiving his J.D. in 1997, he clerked for Fifth Circuit Judge John M. Duhé, Jr., in Louisiana.[3] From 1998-2002 he had a series of relatively short stints in Texas as an associate working on appellate matters at Vinson & Elkins LLP in Houston; as Assistant Solicitor General in Austin; and as an associate at Weil, Gotshal & Manges LLP in Austin.[4] In 2002, he became an “Associate-in-Law” (preparing a teaching career) at Columbia Law School, receiving his L.L.M. from that institution in 2004.[5] He taught at the University of Mississippi School of Law from 2004-2008, then served as Appellate Chief (essentially the solicitor general)[6] for Louisiana’s AG’s office from 2008-2012.[7] After that he began what would become his most publicly notable work, serving from 2012-2014 as general counsel (leading the litigation team) for the Becket Fund for Religious Liberty,[8] a “non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.”[9] He left Becket in 2014 to open up his own shop, Duncan PLLC, which today exists as Schaerr Duncan LLP, where he continues work “in the same genre” as he handled “while in government practice and at Becket–namely civil and criminal litigation, typically concerning federal constitutional issues and primarily, but not exclusively, at the appellate level.”[10]

Duncan is a member of the ABA’s Committee on the Relationship of the Legislative, Executive, and Judicial Branches.[11] He is also a member of the Federalist Society (a conservative law and policy group whose membership has yielded numerous Trump nominees)[12] and of the Knights of Columbus,[13] “an international organization of nearly 2 million Catholic men whose principal work involves helping others in need.”[14]

Duncan was a poll watcher for Mitt Romney’s presidential campaign in 2012, and in 2016 he was a member of the religious liberty advisory board for Marco Rubio’s presidential campaign.[15]

History of the Seat

Duncan was nominated to a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit. The seat opened up with Judge W. Eugene Davis’s move to senior status on December 31, 2016. Because the seat opened up so late in the Obama Administration, no nominee was put forward until Duncan was nominated on October 2, 2017.

Legal Career

Duncan’s most notable representations in recent history have been in opposition to reproductive freedom and the rights of LGBT people. (Disclosure: In many of the cases cited below, the ACLU–for whom I work–was on the opposite side of the litigation.)

Since leaving the Becket Fund, Duncan has devoted considerable time in cases involving transgender rights. For example, Duncan represented a Virginia school board that refused to let transgender male student Gavin Grimm use the male restroom at school. The Supreme Court did not ultimately issue a merits determination in that case. Duncan also represented North Carolina’s speaker of the House and the president pro tem of the Senate in Carcaño v. McCrory, [16] a suit challenging North Carolina’s House Bill 2, which blocked transgender people from accessing restrooms and other facilities consistent with their gender identity and prevented local governments from protecting LGBT people from discrimination in a variety of settings, and HB 2’s replacement law, HB 142.

The plaintiffs in Carcaño, represented by the ACLU and Lambda Legal, contended among other things that denying transgender people access to restrooms consistent with their gender identity violates their rights under the Equal Protection and Due Process Clauses and Title IX.[17] In his intervention motion on his clients’ behalf, Duncan argued that the plaintiffs’ legal theory was “radical” and “subjects every North Carolina female” using public facilities “to a heightened risk of sexual predation” by men falsely claiming to be women.[18] In the motion, Duncan also repeatedly put quotation marks around words such as “woman” and “identify” and the phrase “gender identity.”[19] Despite Duncan’s characterization, the district judge, appointed by George W. Bush, entered a preliminary injunction as to the plaintiff’s Title IX claim,[20] in accordance with the increasing number of courts who are finding that similar restrictions preventing transgender students from accessing restrooms consistent with their gender identity violate Title IX and the Equal Protection Clause.[21]

Throughout the litigation, Duncan’s ultimate legal position–increasingly rejected by courts[22]–was that discrimination against transgender people is subject to the most lenient form of judicial review, rational-basis review. Moreover, Duncan rejects the application of the sex-stereotyping theory of sex discrimination (from the Supreme Court’s Price Waterhouse v. Hopkins case) to transgender people. At the preliminary-injunction hearing, Duncan argued that transgender women are not women and that transgender men are not men, and that laws like North Carolina’s don’t have anything to do with sex stereotypes. To Duncan, the cases applying Price Waterhouse to transgender people were those “where the discriminator has discriminated on the basis of mannerisms, or the appearance, the behavior of a person. Just to put it in plain terms, I’ve discriminated against a man because that man doesn’t act enough like a man,” or “[w]e don’t think a man should look like that.”[23] Duncan distinguishes North Carolina’s laws by saying that under those provisions, “[i]It doesn’t matter how you present as a man, it doesn’t matter how masculine you are, it doesn’t matter how high your voice it, it doesn’t matter. Men use the men’s bathroom. The same for women. That’s not sex stereotyping. That’s the opposite of sex stereotyping.”[24]

In addition to his work limiting transgender rights, Duncan has also fought the legal recognition of same-sex families. Duncan was counsel of record for the respondent in V.L. v. E.L., which concerned a lesbian couple’s second-parent adoption, which is an adoption by someone who is not the spouse of the child’s legal parent. (At the time of the adoption, V.L. could not legally marry biological mother E.L. in Alabama, but the two sought to raise their child together.) V.L. and E.L. secured the adoption in Georgia, but E.L. later tried to disrupt the arrangement by arguing that Alabama did not have to give full faith and credit to the Georgia court’s judgment. In his response to the cert petition, Duncan argued that the Georgia court lacked jurisdiction to grant the adoption, and therefore Alabama did not have to honor it.[25] Duncan criticized V.L. for “extravagantly” claiming that the Alabama Supreme Court’s decision “grossly deviates” from the Supreme Court’s full-faith-and-credit jurisprudence, and said she was overstating the harms that the Alabama court’s decision would cause.[26] Without granting oral argument, the Supreme Court summarily reversed in a unanimous decision, rejecting Duncan’s arguments, stating that under Georgia law, superior courts have subject-matter jurisdiction to decide “all matters of adoption,” and whatever the merits of the Georgia court’s judgment, that judgment was within that statutory grant of jurisdiction and had to be given full faith and credit.[27]

Perhaps Duncan’s most famous case was serving as party counsel to Hobby Lobby Stores and its owners in their eponymous challenge to the Affordable Care Act’s contraception mandate.[28] In Hobby Lobby, the Supreme Court struck down the requirement as to closely held corporations whose owners objected to providing contraceptive coverage on religious grounds.[29] Duncan’s subsequent forays into reproductive-freedom law included filing an amicus brief in the Supreme Court’s latest abortion case, Whole Woman’s Health v. Hellerstedt, on behalf of the Association of American Physicians and Surgeons, Inc.,[30] and representing his former boss–the State of Louisiana–in its defense of a challenge to its requirement–not unlike the one struck down in Whole Woman’s Health–that doctors performing abortions have admitting privileges at a nearby hospital. In that case, June Medical Services, L.L.C. v. Gee, the district court entered a permanent injunction earlier this year barring enforcement of the law,[31] and the case is on appeal for the second time to the Fifth Circuit.[32] Rejecting the foundation of the purported purpose behind these laws–women’s safety–the district court noted in its final order that Duncan “did not introduce any evidence showing that patients have better outcomes when their physicians have admitting privileges,” nor did he “proffer evidence of any instance in which an admitting privileges requirement would have helped even one woman obtain better treatment.”[33] The court continued:

In conclusion, there is no credible evidence in the record that Act 620 would further the State’s interest in women’s health beyond that which is already insured under existing Louisiana law. Indeed, the overwhelming weight of the evidence demonstrates that, in the decades before the Act’s passage, abortion in Louisiana has been extremely safe, with particularly low rates of serious complications, and as compared with childbirth and with medical procedures that are far less regulated than abortion.

…

Act 620 would do very little, if anything, to advance women’s health and indeed would, by limiting access to legal abortions, substantially increase the risk of harm to women’s health by increasing the risks associated with self-induced or illegal and unlicensed abortions.[34]

This is only a small sample of the major statutory and constitutional disputes in which Duncan has been involved. He represented a muslim inmate in the Supreme Court in a successful religion-based challenge to a state prison system’s beard-length rules (Holt v. Hobbs),[35] represented amici National Sheriffs’ Association and others in challenging President Obama’s DAPA order (Deferred Action for Parents of Americans and Lawful Permanent Residents) (United States v. Texas),[36] represented several state amici in contending that the Sixth Amendment does not require criminal defendants to be apprised of the collateral deportation consequences of a guilty plea (Padilla v. Kentucky),[37] represented several state amici in opposing marriage for same-sex couples (Obergefell v. Hodges),[38] represented the State of North Carolina in filing an unsuccessful cert petition attempting to overturn a Fourth Circuit ruling finding that the state violated the Voting Rights Act in making changes in election laws to target Black voters (North Carolina v. North Carolina State Conf. of the NAACP),[39] represented the State of Louisiana in unsuccessfully contending that Miller v. Alabama (prohibiting mandatory life sentences without parole for juvenile offenders) was not retroactive on state collateral review (Montgomery v. Louisiana),[40] successfully represented Louisiana in overturning a multi-million-dollar jury award against a prosecutor (Connick v. Thompson)[41], and supervised the representation of a Jewish prison inmate seeking a kosher diet (Rich v. Sec’y, Fla. Dep’t of Corrections, in the Eleventh Circuit),[42] among others.

Speeches/Writings

Duncan has been a prolific public commentator, and his views in the public sphere track those made in the courtroom. Indeed, most of Duncan’s writing is directed at litigation. He has written on Hobby Lobby (contraception),[43] Zubik (contraception),[44] Trinity Lutheran (religious funding),[45] Windsor and Obergefell (marriage for same-sex couples),[46] and others.

Duncan has written and spoken most often on the contraception mandate.[47] He predicted that the Affordable Care Act’s contraception mandate “could lead to future mandates that could encompass all manner of controversial practices from surgical abortion to euthanasia to sex-change surgery.”[48] Duncan also complained that the religious-employer exemption does not go far enough:

Who doesn’t get the exemption? Organizations that undertake projects such as educating students, treating the sick or feeding the poor. Because these groups leave the cloister, the government now declares their consciences unworthy of protection.

This kind of religious quarantine is patently unconstitutional.

…

Animating these measures is a sinister form of “tolerance” that should make religious Americans shudder. It is a cast of mind that relegates the genuinely religious to the margins of polite society. It tolerates countercultural views on sexual morality — provided they are kept safely out of sight.[49]

On marriage, Duncan says that Obergefell “threatens civic peace” because it “marginalize[s] the view of millions of Americans at exactly the wrong time, when standards of civil discourse are rapidly degenerating and when Americans seem increasingly to be forgetting the value of a robust, free, and open exchange of ideas on controversial topics.”[50]

On public displays on religion, he criticizes “militant atheist” groups that insist on “scour[ing] public life of all religious references” or sponsoring deities like the Flying Spaghetti Monster when such “scour[ing]” is not an option.[51] (Disclosure: I am currently co-counseling an unrelated religious-freedom case with the organization Duncan criticizes in the cited piece.) Defending a city’s purported right to sponsor a nativity scene but permit no other religious displays, Duncan explains: “Any government doomed to give ‘equal time’ to objectors whenever it speaks would collapse into incoherence. The postal service couldn’t issue a stamp honoring Martin Luther King, Jr., without also honoring the Ku Klux Klan. The National Holocaust Museum would have to include the Joseph Goebbels Wing. Lincoln’s statue would have to stare at a Jefferson Davis Memorial.”[52]

Duncan has also written a number of law-review articles. For example, one criticizes Flast v. Cohen, which permitted taxpayer standing to challenge Establishment Clause violations.[53] One analyzes and defends Justice Scalia’s dissent in the Ten Commandments case, McCreary County.[54] Another promotes the idea of tying Establishment Clause jurisprudence to the principle of “subsidiarity”–a “theory about the relationship among social structures, the common good and human dignity with a venerable pedigree in European political thought”; the theory, as explained in the article, is highly complex but ultimately leads to the result of a states’-rights approach to establishment questions.[55] And one article criticizes barriers to public religious funding and seemingly laments Supreme Court decisions that have “scoured public schools of all formal religious practice.”[56]

Overall Assessment

Kyle Duncan is an experienced appellate litigator with highly significant successes in the Supreme Court and lower courts. Both through his academic writings on religion-clause jurisprudence and through his litigation, Duncan has established his views on religious freedom, reproductive freedom, and LGBT rights. While some nominees assert that their work in an AG or SG’s office is not relevant because they were merely representing their government client, the assiduousness and consistency of Duncan’s post-government work at Becket and in private practice suggest that his representations track his own views. If confirmed to the Fifth Circuit, he would likely be a strong voice for narrowing statutory and constitutional protections for reproductive freedom and LGBT rights, while expanding the leeway allowed for citizens making religious objections to a wide variety of laws.

Judge Elizabeth L. “Lisa” Branch, President Trump’s second nominee to the Eleventh Circuit, is a state appeals court judge in Georgia with experience in the George W. Bush administration and as a BigLaw commercial litigator. While she has not had the opportunity to opine much on constitutional law, either as an attorney or judge, Branch is a member of the conservative Federalist Society (as is Judge Kevin Newsom, Trump’s first pick for the Eleventh Circuit). As such, her confirmation will likely ensure a conservative en banc Eleventh Circuit for the foreseeable future.

Background

Elizabeth Lee[1] Branch was born in Atlanta, Georgia, in 1968.[2] She graduated from Davidson College in North Carolina in 1990, and from the Emory University School of Law in 1994. At Emory, Branch served on the Emory Law Journal and was inducted into the Order of the Coif,[3] indicating her position in the top ten percent of her class.[4] After law school, she clerked for two years in Atlanta for Judge J. Owen Forrester of the U.S. District Court for the Northern District of Georgia.[5] Thereafter, from 1996 to 2004, she worked at the law firm of Smith, Gambrell & Russell, LLP.[6] This was followed by four years in the Bush Administration, where she served in non-litigating positions,[7] first as the associate general counsel for rules and legislation at the Department of Homeland Security, then as the special assistant and counselor to the administrator of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget.[8]

In 2008, Branch returned to Smith, Gambrell & Russell as a partner in the commercial litigation group,[9] also working some on government affairs.[10] In 2012, Branch was appointed by Governor Nathan Deal to the Georgia Court of Appeals.[11]

While at the Georgia Court of Appeals, Branch has served and continues to serve on various internal court committees, and from 2013 to 2017 she also served as a commissioner, appointed by Governor Deal,[12] on the Georgia Child Support Commission.[13]

Among many other affiliations, Branch has been a member of the Federalist Society since 2001.[14] She served on the Executive Board of the Atlanta Lawyers Chapter from approximately 2009 to 2012, and she has served on that chapter’s Board of Advisors from 2012 to the present.[15] From approximately 2001 to 2003, and from 2006 to 2009, she was a member of the Republican National Lawyers Association.[16] She was on the Chairman’s Council of the Fulton County Republican Party from approximately 2011-2012, and she was a member of the National Rifle Association from 2009 to 2014.[17]

Political Activities

Prior to becoming a judge, Branch engaged with several political campaigns as an unpaid volunteer, including participating in the Republican National Committee’s 2006 door-to-door efforts supporting Rick Santorum (unsuccessfully) for a third Senate term.

History of the Seat

Branch has been nominated for a Georgia seat on the U.S. Court of Appeals for the Eleventh Circuit. The vacancy will result from Judge Frank Hull’s impending move to senior status. As Hull, one of the court’s solidly conservative members, has indicated that she will not move to senior status until the confirmation of her successor, there is not an active vacancy currently on the Eleventh Circuit.

Legal Career

Branch has never practiced before the Supreme Court of the United States,[18] but rather has focused her career on commercial litigation and subsequent service in the federal government in a non-litigating position.[19] Having not served in an attorney general’s or solicitor general’s office, she does not have a record of making controversial arguments or supporting controversial laws.

As part of the U.S. Senate’s Questionnaire for Judicial Nominees, Judge Branch was required to list the ten most significant litigated matters that she personally handled.[20] All ten were civil, four settled, and none concerned constitutional law or civil-rights laws. Only one of the ten listed resulted in a reported decision.[21] As such, it is difficult to determine her legal views on almost any subject from her work as an attorney. Branch’s pre-judicial career as an attorney does not appear, by itself, to shed any light on her views of separation of powers, federalism, privacy, equal protection, due process, religious freedom, or speech, for example. As will be noted, this is true of her judicial career as well.

Jurisprudence

Although Branch has been a state appellate judge for more than five years and has participated in more than 1,500 cases,[22] her decisions say little about her views on constitutional law. This is because the Georgia Court of Appeals “has statewide appellate jurisdiction of all cases except those involving constitutional questions, murder, and habeas corpus cases where original appellate jurisdiction lies with the Supreme Court [of Georgia].”[23] Her court nevertheless has jurisdiction “to address constitutional issues when they are well-settled as a matter of law,” and Judge Branch participated in a number of criminal appeals raising constitutional issues.[24] As a whole, those criminal-law opinions do not reflect an anti-defendant bias. In a number of cases, Branch has granted new trials as a result of ineffective assistance of counsel[25] and reversed denials of motions of suppress (or affirmed the grant of a motion to suppress),[26] which resulted in some convictions being reversed.[27]

But, by and large, her views on major issues of constitutional law are not available to us from her judicial record. That is not to say, of course, that nothing can be gleaned from her prior cases.

In a case seemingly designed to end up in blog posts such as this, Judge Branch held in Gary v. State that a man could not be convicted of criminal invasion of privacy under O.C.G.A. § 16-11-62(2) for recording video up a woman’s skirt with his cell phone while at the grocery store.[28] Perhaps aware that the eyebrow-raising nature of the holding might draw attention–either upon entry of the decision or in future confirmation hearings such as the one at which she will soon appear–Judge Branch took pains to explain what she was and was not saying:

“Each of Gary’s first four enumerations of error turns on whether OCGA § 16–11–62 (2) criminalizes the conduct at issue. With respect to this question, both the State’s argument and the trial court’s holding focused on two propositions: (i) that Gary’s conduct was patently offensive and (ii) that a woman walking and shopping in a public place has a reasonable expectation of privacy in the area of her body concealed by her clothing. We do not disagree with either of these propositions. Nor do we doubt that a woman whose body is surreptitiously photographed beneath her clothing has suffered an invasion of privacy of some kind. The question before this Court, however, is not whether the defendant’s conduct was offensive; it is not whether a person walking in a public place has a reasonable expectation of privacy as to certain areas of her body; and it is not whether the victim’s privacy was violated. Rather, the only issue presented by this appeal is whether the defendant’s conduct constitutes a criminal invasion of privacy, in violation of OCGA § 16–11–62 (2).

The answer to this question necessarily must begin with the language of OCGA § 16–11–62 (2) itself.”[29]

Turning to that language–which makes it illegal for “[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view”–along with language from surrounding subsections and an earlier definitions section, Branch concluded that the term “private place” did not include a particular region of a person’s body.[30] Five of her colleagues joined her opinion, and together they noted “that it is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct. . . . The remedy for this problem, however, lies with the General Assembly, not with this Court. Both our constitutional system of government and the law of this State prohibit the judicial branch from amending a statute by interpreting its language so as to change the otherwise plain and unambiguous provisions thereof.”[31] Three judges dissented, finding that the very same “plain and unambiguous language” of the statute yielded the opposite result.[32]

Branch also resorted to plain statutory language in holding that two transgender men had a right to change their names, in In re Feldhaus.[33] (Disclosure: the ACLU, for whom I work, filed an amicus brief in the case.) Although she pointedly did not use personal pronouns to describe the men–instead employing an awkward “the person formerly known as x” formulation–the judge formerly and currently known as Lisa Branch appropriately recognized that all the Georgia name-change statute requires is that a person not change their name in an attempt to defraud others, and that the transgender petitioners’ attempts to change their names to ones consistent with their gender identity in the cases before her were not an attempt to defraud others.[34] In so holding, the judge formerly and currently known as Lisa Branch offered a clear rejection of the approach taken by the many state trial judges–not just in Georgia but across the country–who unlawfully burden transgender petitioners for name changes with additional requirements or criteria that are nowhere enumerated or implied and are not applied to any other class of petitioner.

Branch’s interpretation of purportedly plain language was not always uncontroversial. Beyond the skirt-photographing case described above, in the Cook case Judge Branch–joined by two colleagues–interpreted the federal Medicaid statute to be unambiguous in indicating that the Medicaid applicant’s purchase of an annuity was not subject to an asset-transfer penalty, and thus refused to defer to the relevant federal agency’s contrary interpretation.[35] The Supreme Court of Georgia–while splitting on the degree of agency deference required–unanimously disagreed that the language unambiguously required Branch’s interpretation.[36]

Preceding another prominent reversal on a matter of statutory interpretation, Branch formed part of a three-judge plurality that held that police officers of Agnes Scott College–a private college–were entitled to immunity as “state officer[s] or employee[s]” under the Georgia Tort Claims Act.[37] (One judge concurred in the judgment, while three judges dissented.)[38] The Supreme Court of Georgia unanimously reversed, finding it “clear that the Agnes Scott officers were not acting for any state government entity when they committed the alleged torts.”[39] Looking beyond the specific statutory provision considered by the Court of Appeals plurality, the Supreme Court of Georgia found that “reading the Georgia Tort Claims Act as a whole makes it abundantly clear that the immunity it provides is limited to torts committed by a ‘state officer or employee’ who was acting within the scope of his or her official duties or employment on behalf of a specific ‘state government entity.’”[40]

In each of the cases described above, the distinguishing factor between Branch and her colleagues or the parties was statutory interpretation. What was plain to her was sometimes plainly different to her colleagues. This, of course, is true of all judges, and it will surely continue to mark her future cases, whether she remains in her current position or is confirmed to the Eleventh Circuit.

Writings

Branch does not have many publicly available non-judicial writings. While at OIRA, she co-authored a law-review article entitled “Managing the Regulatory State: The Experience of the Bush Administration.”[41] While an assessment of the Bush Administration’s OMB–including its approach to “smart regulation” and its use of “prompt” letters–is well beyond the scope of this blog post,[42] the piece is notable for its surprisingly statist–relatively speaking–acknowledgment of the importance of regulation:

“Every President from Richard Nixon to George W. Bush has embraced centralized executive oversight of agency regulations. Even critics of OMB acknowledge the legitimacy of a centralized oversight function. Presidents have found regulatory oversight to be necessary and desirable because: (i) the regulatory state is a permanent part of the legal landscape of the United States; (ii) the economic costs of the regulatory state are substantial; (iii) a consensus is needed when executive branch disagreements about regulation arise; and (iv) federal regulations are often necessary to achieve legislative objectives and implement Presidential priorities and policy objectives. Virtually all scholarship on this subject acknowledges the increasing importance of OMB’s role in regulatory policymaking over the past thirty years.”[43]

Although the piece is highly technocratic, promotes science, and gives some amount of attention to so-called unquantified benefits such as a human health and environmental quality, it would be reading too much into this article to suggest that an appreciation of agency expertise will lead Branch to defer to that expertise when the statutory language does not require it. Instead, she will likely seek simply to apply language that she perceives to be unambiguous.

Overall Assessment

Branch’s legal career provides very little insight into how she would operate as an Eleventh Circuit judge faced with a wide range of constitutional questions, as she has not publicly staked out a position on any hot-button legal issue. Her most controversial public acts seem to be joining the NRA and supporting incumbent senator Rick Santorum, holder of a variety of controversial views. Branch’s membership in the Federalist Society is the clearest indication of where her judicial philosophies lie, and her confirmation would likely ensure a conservative en banc Eleventh Circuit for many years to come.

Kevin Newsom, President Trump’s first nominee to the Eleventh Circuit, is a seasoned appellate litigator, seemingly universally respected, with extensive experience in diverse areas of law. A longtime member of the Federalist Society, his confirmation would cement the somewhat evenly balanced Eleventh Circuit back onto a firm conservative footing.

Background

Kevin Christopher Newsom, born in 1972,[1] graduated first in his class from Samford University in 1994 before moving on Harvard Law School, where he graduated magna cum laude in 1997 and served on the Harvard Law Review.[2] After law school, Newsom clerked for prominent conservative Judge Diarmuid O’Scannlain on the Ninth Circuit (1997-98). Clerking for O’Scannlain, a “feeder judge” for the Supreme Court, led Newsom to a clerkship with Justice David Souter (2000-01).[3] Newsom described working for Justice Souter—who is not known for his conservative views—as a “dream job,” and characterized his former boss as “blindingly brilliant.”[4]

After clerking for Justice Souter, Newsom stayed in DC doing appellate litigation for Covington & Burlington. He chose Covington & Burlington because he wanted to become a law professor and had heard that the firm had “a strong reputation for sending its alumni into the teaching field.”[5] But he became entranced with appellate law and after two years left the firm to take a position as Alabama’s Solicitor General in 2003.[6] The man who hired him? Then-Alabama Attorney General—now Eleventh Circuit judge—William Pryor.[7]

In 2007, Newsom left the SG gig for Bradley Arant, where he remains as a partner today.[8] Since his start at Bradley Arant, he has at various times served as an adjunct professor at Samford University’s Cumberland School of Law, Vanderbilt University Law School, and the Georgetown University Law Center.[9]

Newsom has been a member of the Federalist Society since 1999.[10] He was President of the Birmingham Lawyers Chapter from 2012-2015, and since 2007 he has regularly presented at Society events and has been a member of the Executive Committee of the Society’s Federalism and Separation of Powers Practice Group.[11] His fellow members on that committee include conservative legal luminaries such as Paul Clement, Greg Katsas, Eleventh Circuit Judge William Pryor, and fellow Trump nominee for the Eighth Circuit and current Minnesota Supreme Court Justice David Stras.[12] Newsom has also been a member of the American Law Institute since 2006.[13] Since 2011, he has served on the U.S. Judicial Conference’s Advisory Committee on Appellate Rules.[14]

History of the Seat

The seat Newsom was tapped for has been open since the retirement of Judge Joel Dubina in 2013.[15] Dubina, the father of Alabama Republican Representative Martha Roby, left the Circuit at a time of significant turnover, with four seats out of twelve open on the court. While the Obama Administration appointed three judges to the Circuit, somewhat moderating its conservative tilt, Alabama Senators Richard Shelby and Jeff Sessions were unable to come to an agreement with the Obama Administration over a nominee for the Dubina vacancy.[16]

More than two years after the vacancy opened, Obama nominated Judge Abdul Kallon to fill the vacancy.[17] While Kallon, a former Bradley Arant partner himself, had been confirmed as a federal district judge with Shelby and Sessions’s support, they refused to return blue slips for his elevation.[18] With no blue slips, the Judiciary Committee took no action on Kallon’s nomination, and the seat was left unfilled during the Obama Administration.

Legal Career

As the Solicitor General for Alabama, Newsom argued many cases and participated in a number of filings before the U.S. Supreme Court.[19] He was the counsel of record in an amicus filing on behalf of 25 states in a case challenging a three-drug lethal-injection protocol, Hill v. McDonough, 547 U.S. 573 (2006). Hill had brought his claim under § 1983, but the Eleventh Circuit held that his § 1983 claim was the functional equivalent of a habeas petition, and because Hill had previously sought federal habeas relief, his new claim was barred as successive under 28 U.S.C. § 2244.[20] In his amicus brief for the various States, Newsom endorsed this view and further made the case that “[e]leventh-hour litigation like Hill’s fatally frustrates” the States’ “ability to carry out duly-adjudicated death sentences in a timely manner.”[21] Permitting “all manner of execution-related challenges to proceed via §1983,” Newsom contended, would come “at the cost of the finality interests that the federal habeas corpus statute is designed to protect.”[22] To illustrate his concerns, Newsom related the story of former Alabama prisoner David Lee Nelson, who—as told by Newsom—manipulated the Supreme Court into granting him continued litigation on his claims.[23] Newsom argued Alabama’s position in Nelson’s appeal,[24] and in Newsom’s view, permitting Hill to challenge the execution protocol under § 1983 would compound the supposed flaw in the Supreme Court’s treatment of Nelson.[25]

In its opinion, the Supreme Court unanimously reversed the Eleventh Circuit.[26] Although the Court stated that “the State and the victims of crime have an important interest in the timely enforcement of a sentence” and that “courts should not tolerate abusive litigation tactics,” the Court unanimously rejected Newsom’s arguments, as well as those by the respondents and the federal government (as amicus), as inconsistent with the Federal Rules of Civil Procedure and the court’s precedent.[27] In Hill’s case, Newsom’s fear about further protracted litigation did not come to fruition. The Supreme Court’s reversing opinion—in which it noted that it was not ruling on the “equities and the merits of Hill’s underlying action”—was handed down on June 12, 2006.[28] Three months later, on September 20, 2006—following several more opinions from the district court and Eleventh Circuit[29]—Hill was executed.[30]

Newsom, again as Alabama’s SG, also defended against a constitutional challenge to Alabama’s statutory ban on the distribution of sex toys.[31] (Disclosure: The ACLU, for whom I work, was opposing counsel in the case.) The Eleventh Circuit, in several opinions (the Williams cases), addressed the question whether the ban could survive Supreme Court precedent—including, ultimately, Lawrence v. Texas, 539 U.S. 558 (2003)—holding that it did.[32] Newsom’s position, accepted by the court, was—in the court’s words—that “public morality remains a legitimate rational basis for the challenged legislation even after Lawrence.”[33] A decade later, however, the Eleventh Circuit has granted rehearing en banc in another case on the question whether one of the Williams cases is still good law and whether a Georgia municipality’s ban on the sale of sex toys is constitutional.[34] Although the specific Williams case in question is not the one in which Newsom was counsel, the broader constitutional inquiry that the court will address directly implicates the case in which he was involved as well.[35] Oral argument in that case will be held on June 6, 2017.[36]

Finally, Newsom also argued for Alabama in a case concerning preclearance under the Voting Rights Act, Riley v. Kennedy, 553 U.S. 406 (2008). There, Alabama—a “covered” jurisdiction under the VRA, meaning it must obtain “preclearance” from the U.S. DOJ before changing voting procedures—sought to reinstate a prior voting practice following the Alabama Supreme Court’s conclusion that a newer practice was unconstitutional.[37] Newsom successfully contended that Alabama’s return to its prior practice did not qualify as a change requiring preclearance—Justice Ginsburg wrote the 7-2 opinion in Alabama’s favor.[38] Justice Stevens, along with Newsom’s former boss, Justice Souter, dissented.[39]

Writings

Newsom has received some scholarly attention for an article he published in the Yale Law Journal while working as an associate at Covington & Burling: “Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases.”[40] In that article, which he developed while serving as a research assistant on Professor Laurence Tribe’s constitutional law treatise,[41] Newsom takes on the Fourteenth Amendment’s Privileges or Immunities Clause, arguing that the conventional scholarly interpretation of the Slaughter-House Cases is mistaken. While many commentators believe the Clause incorporates most or all of the protections of the Bill of Rights against the states and that the Slaughter-House Cases were therefore wrongly decided, Newsom agrees with former and disagrees with the latter, instead arguing that the Cases are consistent with an incorporationist interpretation of the Clause.

In reaching this conclusion, Newsom offers his views on the doctrine of substantive due process, stating that his interpretation “would permit courts to lay aside the historically confused and semantically untenable doctrine of ‘substantive due process,’ a doctrine that has for years visited suspicion and disrepute on the judiciary’s attempt to protect even textually specified constitutional freedoms, such as those set out in the Bill of Rights, against state interference.” Although he states that his primary concern about what his interpretation of Slaughter-House means for substantive-due-process doctrine is the protection of “substantive Bill of Rights freedoms” (such as the freedom of speech), purportedly leaving “for another day” what his reinterpretation means for the “more controversial branch of substantive due process”—“the protection of unenumerated rights against state interference”—he nevertheless makes plain those views as well: (1) substantive due process is inconsistent with the constitutional text; (2) it is inconsistent with the intent of the framers of the Fourteenth Amendment; (3) because of those reasons, reliance on the doctrine undermines the integrity of the Supreme Court and the “institution of judicial review”; and (4) the doctrine can be traced to the Dred Scott decision and therefore suffers a “pedigree” problem. On this latter point, Newsom offers his advice to judges: “courts invoking substantive due process—the idea of grounding protection for a substantive right in what is, by all accounts, a purely procedural provision—would do well to remember that all roads lead first to Roe, then on to Lochner, and ultimately to Dred Scott.” Presumably, this statement is intended to suggest that all three decisions—not simply Dred Scott and Lochner, but also Roe—were wrongly decided.

Newsom’s views on substantive due process put him at odds with current Supreme Court caselaw—which obviously recognizes the existence of substantive-due-process doctrine—but it does not place him out of the conservative mainstream, which has long challenged Roe in particular and substantive due process more generally. Notably, his potential future colleague on the Eleventh Circuit—should Newsom be confirmed—is Judge William Pryor, who called Roe the “worst abomination in the history of constitutional law.”[42] (Judge Pryor was initially filibustered by Senate Democrats and was installed as a circuit-court judge by President George W. Bush through a recess appointment.[43]) Newson’s apparent wholesale rejection of substantive due process is also shared by at least one member of the current U.S. Supreme Court—Justice Clarence Thomas. Justice Thomas was confirmed in 1991 by a narrow margin and in a confirmation environment that was much more forgiving than today’s. Given the change in environment and Justice Thomas’s willingness to overturn otherwise settled law in a variety of areas “in an appropriate case”[44]—including in the area of substantive due process[45]—it is not clear that he could be reconfirmed today. What this means with someone of Newsom’s specific views on substantive due process is unclear, but given that Newsom is not being nominated for the Supreme Court but for the Eleventh Circuit, he would not be in a position—for the moment, at least—to overturn Supreme Court caselaw in that or in any other area. At most, he will be in a position to narrowly interpret or distinguish such cases. This is true of any other judge on the court, but it is not insignificant, particularly given his assertion that “courts invoking substantive due process … would do well to remember that all roads lead first to Roe….” This advice was not directed solely at the Supreme Court but rather courts, plural—presumably including the court to which he has been nominated. The statement seems to suggest that all courts should consider the putative illegitimacy of Roe when addressing claims involving the doctrine of substantive due process.

Such a statement is at odds with Supreme Court precedent, which not only reaffirmed Roe in 1992 (Casey[46]) but relied on it as recently as 2016 (Whole Woman’s Health[47]). Perhaps this interpretation of Newsom’s writing accurately reflects his views as a recent law school graduate, but there does not appear to be any publicly available indication that he would in bad faith resist the application of Supreme Court caselaw with which he disagrees. When I asked former Alabama Solicitor General John Neiman for his own view on Newsom’s nomination, he replied, “[h]e is a great pick and extremely qualified.”

Overall Assessment

On paper, Kevin Newsom is an eminently qualified nominee for the Eleventh Circuit. His views on substantive due process, however, while not out of step in the community of conservative legal superstars through which he moves, are inconsistent with current caselaw, and his apparent views on Roe in particular could draw significant concern from some quarters. Nevertheless, I believe that Newsom is a highly qualified pick for the President.